Government Contracts Monitor

Prompt Payment Act & Contract Disputes Act interest rate decreased to 2.625%, effective 7/1/19

July 22, 2019

The Treasury Department has announced that the Prompt Payment Act (“PPA”) interest rate decreased to 2.625% per annum for the last half of 2019 – i.e., July 1, 2019, through December 31, 2019.  This interest rate is used to calculate the interest penalty paid by the Government when it fails to timely pay contractors for goods and services, as well as interest due under the Contract Disputes Act…

BYE BYE DUNS - HELLO SAMMI

May 1, 2019

Last month the General Services Administration (GSA) awarded a $41 million, five-year contract to Ernst and Young LLP (EY) to replace Dun & Bradstreet (D&B) as the contractor supplying entity validation services – the well-known, long-standing Data Universal Number System (DUNS).  All federal agencies and federal contractors (and grant recipients) – everyone doing any kind of business with the…

SBA Area Offices Are Precluded from Reviewing a Duly-Approved 8(a) Mentor/Protégé Joint Venture Agreement, and May, But Are Not Required to, Refer Any Concerns to SBA’s Office of Business Development

April 24, 2019

The Small Business Administration (SBA)’s Office of Hearings & Appeals (OHA) recently reaffirmed that SBA Area Offices are precluded from reviewing the substance of an 8(a) Mentor-Protégé’s Joint Venture Agreement (JVA), once such agreement has been approved by the servicing SBA District Office.  OHA further held that, while an Area Office has the discretion to refer any concerns the Area Office…

Exemption 4: Protection of Confidential Information - The Ground May be Shifting

April 10, 2019

The Supreme Court recently granted a petition for writ of certiorari over (that is, agreed to review) an Eight Circuit decision involving Exemption 4 of the Freedom of Information Act (“FOIA”).  What is Exemption 4?  It is the exemption that protects from public disclosure “trade secrets and commercial or financial information obtained from a person and privileged or confidential.” Why is this…

Will DoD Change How It Procures "Readily Available" Commercial Items?

March 21, 2019

The Section 809 Panel has recommended some drastic changes that would impact government contractors doing business with the Department of Defense (DoD).  What is the Section 809 Panel? It is a panel created in Section 809 of the FY 2016 National Defense Authorization Act (NDAA) with goals outlined in the NDAA such as: (i) reviewing DoD’s acquisition regulations with a view toward improving the…

GAO Sustains Limiting the Number of Projects Allocable to a Large Business Mentor's Experience, but Rejects Treating a Mentor-Protégé Joint Venture Differently than a Prime/Subcontractor Contractor Teaming Agreement

March 17, 2019

One of the principal advantages of an approved Mentor/Protégé Agreement (MPA) is that the Mentor and Protégé can enter into a joint venture (JV) that can compete as small for any contract for which the Protégé would be eligible (see, e.g., 13 C.F.R. § 125.109(d)(1)).  In turn, one of the principal advantages of a JV - now enshrined in statute and regulation - is that in evaluating experience and…

Hopewell Darneille to Present at DYNET 2019, Fairmont, WV -- April 11, 2019

March 17, 2019

Hopewell Darneille, of the Firm’s Washington, DC office, will be a presenter at the 10th annual Dynamic Networking for Small Business (DYNET) Conference, a federal and prime contracting event in Fairmont, West Virginia, on April 11, 2019 at the Robert H. Mollohan Research Center.

Mr. Darneille will co-present a Workshop on “Negotiating and Drafting a Compliant and Workable Joint Venture Agreement…

Agency Waiver of Solicitation Requirement - Fatal or Non-Prejudicial?

March 6, 2019

A recent protest demonstrates why it is not sufficient for a disappointed offeror to challenge an agency’s award as improper solely because the agency relaxed or waived a material solicitation requirement in evaluating the awardee’s proposal and thus the awardee’s proposal was deficient.  Such a challenge, in order to succeed, must include another key element: demonstrated prejudice to the …

Following SBA's Joint Venture Agreement Template Not a Free Pass, and Don't Ignore the Footnote Comments

February 28, 2019

The Small Business Administration (SBA)’s Office of Hearings & Appeals (OHA) recently reiterated that SBA Joint Venture Agreements (JVAs), including those entered into under SBA’s new All-Small Mentor-Protégé Program (ASMPP), must include adequate specific detail as to the respective responsibilities of the parties with regard to, inter alia, performance of the proposed contract, and how the…

A Preference for U.S. Goods and Services: Buy American Receives A Booster Shot

February 24, 2019

On January 31, 2019 President Trump signed yet another Executive Order addressing Buy American issues: Buy American, Hire American [here]. This Order requires that federal agencies purchase U.S. goods and services in any and all infrastructure projects including, interestingly, cybersecurity projects. Among other things, this recent Order underscores the Trump Administration’s policy of enforcing…

Rare DOL Nondisplacement Decision Holds that Incumbent's Certified Employee List Is Not Determinative, and Awardee Must Consider Agency's "Credible Evidence" as to Incumbent Employee's Qualifications and First Refusal Offer Entitlement

February 14, 2019

Every awardee under qualifying federal government service contracts faces difficult issues and choices under Executive Order 13495, “Nondisplacement of Qualified Workers under Service Contracts,” and the implementing Department of Labor (DOL) Regulations at 29 C.F.R. Part 9, which require awardees to offer incumbent employees “a right of first refusal for employment under the contract in…

Changing Key Personnel After Proposal Submission? Not So Fast....

February 6, 2019

As the GAO recently determined, and the Court of Federal Claims affirmed, an offeror who finds itself in a position of having to modify key personnel specified in its proposal, after the deadline for proposal submission, may end up with an unacceptable proposal.  If an agency notified offerors that it might award without discussions, an offeror will not be able to "re-open" the proposal process to…